Citation Nr: 9923192
Decision Date: 08/17/99 Archive Date: 08/26/99
DOCKET NO. 96-15 232 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania
THE ISSUE
Entitlement to service connection for disorders of the lumbar
and/or cervical spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Grace Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from January 1982 to
April 1982, and again from November 1984 to September 1985.
This appeal arises from a March 1995 rating decision of the
Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA)
Regional Office (RO), which denied service connection for a
back disorder and major depression. By rating decision of
July 1998, service connection was granted for chronic
depressive disorder, evaluated as 30 percent disabling,
effective April 1994. Therefore, that issue is no longer
before the Board and is not reflected on the title page. The
issue of service connection for a back disorder is now the
only issue before the Board.
This case is now ready for appellate review.
FINDINGS OF FACT
1. The veteran's claim that he has a back disorder due to
service is not accompanied by any medical evidence to support
that allegation.
2. The veteran's claim for service connection for a back
disorder, involving the lumbar and/or cervical spine, is not
plausible.
CONCLUSION OF LAW
The veteran's claim for entitlement to service connection for
a back disorder, involving the lumbar and/or cervical spine,
is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question as to the issue of entitlement to
service connection for a back disorder is whether the veteran
has presented a well-grounded claim. A well-grounded claim
is a plausible claim, one which is meritorious on its own or
capable of substantiation. In this regard, the veteran has
"the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded." 38 U.S.C.A. § 5107(a) (West 1991);
Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). If the evidence
presented by the veteran fails to meet this threshold level
of sufficiency, no further legal analysis need be made as to
the merits of the claim. Boeck v. Brown, 6 Vet.App. 14, 17
(1993).
The veteran must satisfy three elements for a claim for
service connection to be well grounded. First, there must be
competent evidence of a current disability (a medical
diagnosis). See Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992) and Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992).
Second, there must be evidence of incurrence or aggravation
of a disease or injury in service, as shown through lay or
medical evidence. See Layno v. Brown, 6 Vet.App. 465, 469
(1994) and Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991).
Lastly, there must be evidence of a nexus or relationship
between the inservice injury or disease and the current
disorder, as shown through medical evidence. See Lathan v.
Brown, 7 Vet.App. 359, 365 (1995) and Grottveit v. Brown,
5 Vet.App. 91, 93 (1993). See also Caluza v. Brown,
7 Vet.App. 498, 506 (1995). In determining whether a claim
is well grounded, the Board is required to presume the
truthfulness of the evidence. Robinette v. Brown, 8 Vet.App.
69, 77-78 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993).
Service medical records are devoid of findings, treatment or
diagnoses of a back disability. After service, the veteran
was first seen with complaints related to his back in 1989.
He was brought to the emergency room of Allegheny Valley
Hospital complaining of neck pain radiating down his left
arm. He related that he had been in an altercation and
thought he had been struck with some steel. He denied
numbness or tingling. Physical examination revealed that the
neck was supple and there was some tenderness to palpation
over the lateral aspect of the acromioclavicular (AC) and
upper deltoid joints. The pertinent diagnosis was sprain of
the left shoulder.
A Social Security Administration (SSA) decision was issued in
October 1991. The decision indicated, in pertinent part,
that the veteran applied for disability insurance benefits
and supplemental security income in November 1990. He
alleged disability commencing in June 1988, due to depression
and lower-back pain. SSA determined that the veteran had
presented no corroborative clinical evidence of low back
pain. Specifically, there was no deformity, tenderness, or
any abnormalities noted in the lumbosacral spine, knee or
ankle joints upon examination. Range of motion was maximal.
Although found disabled for Social Security purposes, this
disability was based on the veteran's long history of
psychiatric impairment.
The veteran underwent a VA examination in November 1994. He
gave a history of low back pain of ten years duration. The
condition did not seem to be progressive. The condition
appeared to radiate to the left lower extremity. The veteran
claimed the pain was constant and aggravated by bending over
or lifting heavy objects. He denied any paresthesias or
weakness in the lower extremity. He took no specific
medication for his back problem. Physical examination of the
lumbosacral spine showed only minimal abnormalities, namely
there was a slight decrease in range of motion. Forward
flexion was 90 degrees, backward extension was 30 degrees,
lateral flexion was 35 degrees and rotation was 30 degrees.
All movements were slightly painful. There was no
demonstrable spasm of the paraspinal musculature and there
were no deformities or areas of localized tenderness.
Straight leg raising (SLR) test was negative on both sides
and there were no demonstrable neurological deficits (normal
motor power, sensation and deep tendon reflexes in both lower
extremities).
Records from Bouma Chiropractic Clinic, Indiana Hospital,
Center for Orthopaedics and Sports Medicine, Laurel Highlands
Health Center and Edward M. Woodle, DO, were associated with
the claims folder. There was no lumbar spine complaints
noted in these records. There was cervical neuropathy,
cervical stenosis and degenerative disc disease shown.
Additionally, a March 1990 x-ray showed some degenerative
changes in the lower lumbar intervertebral spaces. However,
none of these records attributed any of these back complaints
or disorders to the veteran's military service.
The veteran claims that he has a back disability that he
attributes to his active service. He first must show
evidence of a current disability (a medical diagnosis).
Here, the evidence demonstrates that the veteran currently
has a cervical spine disability and x-ray evidence of
degenerative changes in the lower lumbar intervertebral
spaces. A November 1994 VA examination report diagnosis was
of chronic lumbosacral strain. Accordingly, he has satisfied
the first element of a well-grounded claim.
The second element necessary to establish a well-grounded
claim requires evidence of incurrence or aggravation of a
disease or injury in service, as shown through lay or medical
evidence. In the present case, the veteran has presented no
medical or lay evidence of a low back or cervical spine
disability in service. The first medical evidence indicative
of a back disability was in 1994, for a chronic lumbosacral
spine strain and in 1996, in a private treatment report for a
cervical spine disability. The veteran has not satisfied the
second element of a well-grounded claim.
Lastly, there must be evidence of a nexus or relationship
between the inservice injury or disease and the current
disorder, as shown through medical evidence. Here, the only
indication that the veteran has a back disability (cervical
or lumbar) caused as a result of service is the veteran's own
assertion. This assertion is not supported by the medical
evidence of record. It is well established that lay persons
cannot provide testimony when an expert opinion is required.
Espiritu v. Derwinski, 2 Vet.App. 492 (1992). (See also
Moray v. Brown, 5 Vet.App. 21 (1993) wherein the United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) commented that lay assertions of medical causation will
not suffice initially to establish a well-grounded claim).
Therefore, absent a showing of a back disability in service
and a nexus between that disability and the veteran's present
back disability, a well-grounded claim for service connection
for a back disability (cervical or lumbar) is not
established.
ORDER
Service connection for a back disorder, involving the lumbar
and/or cervical spine, is denied.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals